Matthew T. Mangino: The constitutional rights of crime victims

There are no two words associated with the criminal justice system that are more maligned and misunderstood than “plea bargain.”

Crime victims despise those two words; defense attorneys thrive on them; and prosecutors can’t survive without them. Politicians deride the system because of the underhanded “deals” made with vicious criminals. Even frontline police officers challenge prosecutors when they perceive that the terms of a plea bargain are too lenient.

Victims typically do not have veto power over plea bargains. However, after Tuesday’s election in Ohio, crime victims in that state have some of the most expansive powers in the nation.

Ohio voters overwhelmingly approved a measure which would amend the state constitution to include crime victim rights. The Ohio ballot issue, known as Marsy’s Law, won by a whopping 83 percent of the vote--one of the largest margins in Ohio history.

The plea bargain, however unpopular or unseemly, is a much-needed tool in the administration of justice. The truth is that 97 percent of federal cases and 94 percent of state cases end in plea bargains. As the system currently operates, it would be impossible to provide a constitutionally mandated trial-by-jury for every criminal defendant.

Setting aside the fact that trying every criminal case is beyond the capacity of the courts, there are other compelling reasons to plea bargain. Prosecutors are intimately familiar with the strengths and weaknesses of every case. There are circumstances where a plea to a lesser offense is better than a not-guilty verdict. A reluctant witness or a poor witness may also influence plea negotiations.

Crime victims often do not want to hear about the strength or weakness of a case. They want justice. What does justice mean to a crime victim? Often it may be playing a meaningful role in the process. A victim who is being heard and participating in the process is empowered--and often that may be enough to restore a victim’s faith in the system.

Marsy's Law was named for Marsy Nicholas, the sister of Henry Nicholas, the Co-Founder and former CEO of Broadcom Corporation. Marsy was stalked and killed by her ex-boyfriend. Henry used his considerable wealth to rally support for the California Victims' Bill of Rights Act in 2008 as well as the ballot issue in Ohio. Besides Ohio, Marsy’s law has gained traction in Georgia, Hawaii, Montana, Nevada and South Dakota.

All states and the federal government have passed laws to establish a set of victims' rights. In general, these laws require that victims have certain information, protections, and a limited role in the criminal justice process.

Victims of crime in Ohio will have their rights included in the state constitution. Those rights include:

- Timely notification of all court proceedings- Being present and heard in all court proceedings- The right to refuse an interview or other requests made by the accused- Notice when the accused is released or escapes from prison.

Most importantly crime victims will now have the right to a hearing before a judge if they feel their rights have been violated.

The measure drew token opposition from prosecutors and defense attorneys alike. Ohio Public Defender Tim Young told the Columbus Dispatch. “This was a mistake for us to put this in the constitution.”

“It makes a false comparison between a victim’s rights and a defendant’s rights,” Young said, explaining that defendants’ rights are in the U.S. Constitution.

Opposition to Marsy’s Law was politically difficult, Young said, because people are understandably sympathetic to victims’ rights. He said he’s concerned that Marsy’s Law could undercut protections for people accused of crimes.Although constitutional protections for those accused of a crime are firmly entrenched in the Bill of Rights, trying to balance those rights with those of victims is an ongoing challenge for policymakers and practitioners.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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